THE OFFICE OF APPEALS AND DISPUTE RESOLUTION

February 24, 2010

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In the Matter of Docket No. 2007-162

Harold B. Wassenar DEP File No. PAN-CE-07-9001-24

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RECOMMENDED FINAL DECISION

INTRODUCTION

In this appeal, the Petitioner Harold B. Wassenar challenges an $80,586.00 civil administrative penalty notice (“PAN”) that the Central Regional Office of the Massachusetts Department of Environmental Protection (“MassDEP” or “the Department”) issued to him on November 6, 2007 for hazardous waste and solid waste violations at his 100 acre real property off of Route 122 in Uxbridge, Massachusetts (“the Site”). See PAN, at pp. 1-11. Specifically, the PAN alleges that for at least two years, the Petitioner generated, collected, stored, and disposed of hazardous wastes and solid wastes at the Site in violation of the Massachusetts Hazardous Waste Management Act, G.L. c. 21C, §§ 1-14; the Massachusetts Hazardous Waste Regulations at 310 CMR 30.000; the Massachusetts Solid Waste Management Act, G.L. c. 111, §§ 150A and 150A1/2; the Massachusetts Site Assignment Regulations for Solid Waste Facilities at 310 CMR 16.00; and the Massachusetts Solid Waste Management Regulations at 310 CMR 19.000. Id. The hazardous wastes and solid wastes stored and disposed at the Site included waste oil, waste paints, flammable degreasing solvents, concrete waste from demolition projects, abandoned trucks and vehicles, discarded fuel storage tanks, and discarded appliances and electronic equipment. Id.

The PAN is one of two enforcement orders that the Department issued to the Petitioner on November 6, 2007 regarding his hazardous waste and solid waste violations at the Site. The other enforcement order was a Unilateral Administrative Order (“UAO”) that directed the Petitioner to cease all hazardous waste and solid waste violations at the Site, and to take certain corrective actions, including properly securing and removing the hazardous wastes from the Site. See UAO, at pp. 1-12.

Both the UAO and the PAN made the same allegations against the Petitioner,[1] and both enforcement orders stated that they could be appealed to the Department’s Office of Appeals and Dispute Resolution (“OADR”) with 21 days of their issuance. See UAO, at pp. 12-14 (¶¶ 38A-38D); PAN, at pp. 11-12 (¶¶ 16A-16B). The deadline to appeal was November 27, 2007. Id.

The Petitioner only appealed the PAN within the 21 day appeal period, and nearly one month after expiration of the appeal deadline, he contended that he had also appealed the UAO within the deadline when he had not.[2] He made that claim after he was directed to file a More Definite Statement explaining his grounds for appealing the PAN, and notwithstanding that the record amply demonstrated that he had only appealed the PAN within the required 21 day period.[3]

The Petitioner’s failure to file a timely appeal of the UAO made the factual and legal allegations of the UAO undisputed and final, and, as such, he could not challenge the same allegations in this appeal of the PAN.[4] As a result, on March 21, 2008, I granted partial summary decision on liability to the Department in the Petitioner’s appeal of the PAN. March 2008 Order, at pp. 25-26; See 310 CMR 1.01(11)(f) (“[a] summary decision interlocutory in character may be made on any issue although there is a genuine controversy as to other issues”). This ruling was subsequently supported by the Petitioner’s admission in April 2008 that he was storing materials at the Site that the Department considered to be hazardous wastes or solid wastes.[5]

As a result of my March 2008 Order, the only remaining issue in the Petitioner’s PAN appeal was whether the Department had properly calculated the $80,586.00 penalty at issue pursuant to the Massachusetts Civil Administrative Penalties Act, G.L. c. 21A, § 16, and the Administrative Penalty Regulations at 310 CMR 5.00. This issue was addressed in an Adjudicatory Hearing (“Hearing”) that I conducted in the case on May 16, 2008. Prior to the Hearing, three Department personnel and the Petitioner filed sworn Pre-filed Testimony (“PFT”) on the issue. See below, at pp. 10-12, 20-41. At the Hearing, the three Department personnel and the Petitioner testified under oath and were cross-examined on their Pre-filed Testimony by the parties’ respective legal counsel. Id. As a result of evidence introduced at the Hearing, I recommend that the Department’s Commissioner issue a Final Decision upholding the $80,586.00 penalty.

APPLICABLE STATUTORY AND REGULATORY SCHEME

I. HAZARDOUS WASTE

A. THE MASSACHUSETTTS HAZARDOUS WASTE MANAGEMENT ACT, G.L. c. 21C, §§ 1-14

The Massachusetts Hazardous Waste Management Act, G.L. c. 21C (“HWMA”), governs the disposal of hazardous waste in the Commonwealth. The statute defines “hazardous waste” as:

waste, or combination of wastes, which because of its quantity, concentration, or

physical, chemical or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness or pose a substantial present or potential hazard to human health, safety or welfare or to the environment when improperly treated, stored, transported, used or disposed of, or otherwise managed . . . .

G.L. c. 21C, § 2.[6] The statute provides that “[n]o person shall collect, transport, store, treat, use or dispose of hazardous waste unless that person is in possession of a valid license issued [by the Department] pursuant to [the statute].” G.L. c. 21C, § 5.

The HWMA authorizes “[t]he department [to] issue a license subject to such

terms, restrictions, conditions and requirements as it determines to be necessary to comply with the provisions of [the statute].” G.L. c. 21C, § 7. The statute also provides that:

[w]henever it appears that there is a violation of any provision of [the statute] or any license, order, approval or regulation issued or adopted thereunder, the department may issue to a person causing or contributing, or likely to cause or contribute, to such violation or potential violation an order requiring the production or analysis of samples and the production of records, or imposing such restraints on or requiring such action by said persons, as it deems necessary to abate or prevent such hazard or violation. . . .

G.L. c. 21C, § 9.

B. THE MASSACHUSETTS HAZARDOUS WASTE MANAGEMENT ACT REGULATIONS, 310 CMR 30.000

The HWMA also authorizes the Department to “adopt rules, regulations, procedures and standards as may be necessary” to enforce the statute. G.L. c. 2C, § 4. In accordance with its statutory authority, the Department has promulgated the HWMA Regulations at 310 CMR 30.000, et seq.

The HWMA Regulations provide that:

[n]o person shall transport, use, collect, store, treat, or dispose of hazardous waste or construct, operate or maintain any facility for the use, storage, treatment, or disposal of hazardous waste, unless said person has applied for and obtained, and has in effect, a valid license issued by the Department pursuant to M.G.L. c. 21C and 310 CMR 30.000, [unless] . . . a license is not required for [certain

activities] . . . .

310 CMR 30.801; See also 310 CMR 30.402(2) (“[n]o person, unless exempted by 310 CMR

30.401, shall transport hazardous waste without obtaining and maintaining in effect: . . . [a] valid license from the Department to transport hazardous waste”).

The HWMA Regulations define a “generator” of hazardous waste as “any person, by site,

whose act or process produces hazardous waste identified or listed in 310 CMR 30.100, or whose act first causes a hazardous waste to become subject to regulation.” 310 CMR 30.010. The HWMA Regulations differentiate between “Very Small,” “Small,” and “Large” generators of Hazardous wastes. See 310 CMR 30.010; 310 CMR 30.353. The HWMA Regulations require:

Very Small Quantity Generator[s] [of hazardous wastes to] register with the

Department by notifying the Department in writing of its activity involving hazardous waste or regulated recyclable material. . . .

310 CMR 30.353(5). Very Small Quantity Generators of hazardous waste “who generate and accumulate waste oil or off-specification used oil fuel[,] . . . and who generate and accumulate all other regulated recyclable materials and all other hazardous wastes . . .” must also (1) register with the Department by notifying the Department in writing of their activity involving waste oil, off-specification used oil fuel, other regulated recyclable material, and other hazardous waste; and (2) maintain a hazardous waste manifest for all waste oil or off-specification used oil fuel that is collected and transported by the Generator. 310 CMR 20.253(10).

The HWMA Regulations also require “[a]ll Small Quantity Generators of waste oil and/or used oil fuel [to] . . . [in] all areas where waste oil and/or used oil fuel is accumulated or stored, except for satellite accumulation areas, [to] pos[t] at all times a sign with the words “WASTE OIL” in capital letters at least one inch high.” 310 CMR 30.253(6)(b). Small Quantity Generators of hazardous wastes must also:

(1) clearly mark and label containers and tanks accumulating waste oil, 310 CMR 30.253(6)(b); 310 CMR 30.341(2); 310 CMR 30.351(8)(a);

(2) have “appropriate security measures [in place] at all times to prevent the unknowing entry of persons [at the site of the hazardous wastes], reduce as much as possible the unauthorized entry of persons, and prevent the entry of livestock into such areas,” 310 CMR 30.341(3); 310 CMR 30.353(6)(h);

(3) “have posted at all times [at the site of the hazardous wastes] a sign with the words ‘HAZARDOUS WASTE’ in capital letters at least one inch high,” 310 CMR 30.253(6)(b); 310 CMR 30.341(4); 310 CMR 30.353(6)(h);

(4) clearly mark “[a]ll areas where wastes are accumulated . . . (e.g., by a clearly visible line or piece of tape on the floor, or by a gate or fence, or by a sign at the boundary of a clearly distinguishable area) so that they are clearly distinguishable at all times from all specific points of generation where wastes are initially accumulated[,] . . . and from all areas at the site of generation where wastes are not accumulated,” 310 CMR 30.341(5); 310 CMR 30.353(6)(h);

(5) store all hazardous wastes in containers “which [are] free of cracks and gaps and . . . sufficiently impervious to contain leaks, spills, and accumulated precipitation until the collected material is detected and removed,” 310 CMR 30.342(1)(e)1; 310 CMR 30.353(6)(h);

(6) store hazardous wastes in any outdoor containers that have the capacity to contain either 10% of the total possible contained volume of the containers, or 110% of the volume of the largest container, whichever is greater, 310 CMR 30.342(1)(e)2; 310 CMR 30.353(6)(h); and

(7) “remove all accumulated spillage and/or precipitation from the containment area within 24 hours or in as timely a manner as possible,” 310 CMR 30.342(1)(e)3; 310 CMR 30.343(1)(d); 310 CMR 30.353(6)(h).

II. SOLID WASTE

A. THE MASSACHUSETTS SOLID WASTE MANAGEMENT ACT,

G.L. c. 111, § 150A

The Massachusetts Solid Waste Management Act, G.L. c. 111, § 150A (“SWMA”), governs the disposal of refuse or solid waste in the Commonwealth that does not constitute hazardous waste. The statute defines “refuse” as:

all solid or liquid waste materials, including garbage and rubbish, and sludge, but not including sewage, and those materials defined as hazardous wastes in [G.L.

c. 21C, § 2] and those materials defined as source, special nuclear or by-product

material under the provisions of the Atomic Energy Act of 1954.

The statute prohibits any party from operating a “a dumping ground for refuse or any other

works for treating, storing, or disposing of refuse” without prior approval from the local Board of Health. G.L. c. 111, § 150A. Under the statute, such a dumping ground is considered a solid


waste “facility” and the statute makes clear that:

[a]ny person desiring to maintain or operate a site for a new facility or the expansion of an existing facility shall submit an application for a site assignment to the local board of health and simultaneously provide copies to [MassDEP] and

the [Massachusetts] department of public health . . . .

Id.

The statute also provides that:

[n]o facility shall be established, constructed, expanded, maintained, operated, or

devoted to any past closure as defined by regulation, unless detailed operating plans, specifications, a public health report, if any, and necessary environmental reports have been submitted to [MassDEP] and [MassDEP] has granted a permit for the facility . . .

Id. The statute also requires that “[e]very person maintaining or operating a facility, . . . shall maintain and operate the same in such manner as will protect the public health and safety and the environment,” and that “[n]o person shall dispose or contract for the disposal of solid waste at any place which has not been approved by [MassDEP] pursuant to the provisions of th[e] [statute] or other applicable law.” Id.

B. THE MASSACHUSETTS SITE ASSIGNMENT REGULATIONS FOR SOLID WASTE FACILITIES, 310 CMR 16.00

The SWMA also authorizes the Department to adopt rules and regulations governing solid waste facilities, and to issue orders to enforce the statute. G.L c. 111, § 150A. In accordance with its statutory authority, the Department has promulgated the Site Assignment Regulations at 310 CMR 16.00, et seq., to regulate “the process for deciding whether a parcel of land is suitable to serve as the site for a solid waste management facility.” 310 CMR 16.01(1); 310 CMR 16.01(2).